Bromfield v. Hsbc Bank Nevada, Na et al

Filing 26

OPINION and ORDER: Defendants' motions to dismiss 16 & 20 are GRANTED. Plaintiff's Complaint is dismissed without prejudice. Plaintiff has until August 30, 2013, to file an amended complaint that cures the deficiencies identified in this Opinion and Order. If an Amended Complaint is not filed by that date, Judgment will be entered. Signed on 7/29/2013 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

DAMION BROMFIELD,

Case No. 3:13-cv-462-SI

Plaintiff,
OPINION AND ORDER
v.
HSBC BANK NEVADA and PORTFOLIO
RECOVERY ASSOCIATES, LLC,
Defendants.
Damion Bromfield, 6849 North Missouri Avenue, Portland, OR 97217. Plaintiff pro se.
David J. Elkanich and Benjamin P. O’Glasser, Hinshaw & Culbertson LLP, 1000 SW Broadway,
Suite 1250, Portland, OR 97205. Attorneys for Defendant Portfolio Recovery Associates, LLC.
Marissa A. Bender, Bishop, White, Marshall & Weibel, P.S., 720 Olive Way, Suite 1201,
Seattle, WA 98101-1803, Attorneys for Defendant HSBC Bank Nevada, NA.
Michael H. Simon, District Judge.
Plaintiff Damion Bromfield filed a pro se complaint in forma pauperis on
March 18, 2013. Dkt. 2. Plaintiff’s complaint asserts claims against Defendant HSBC Bank
Nevada (“HSBC”) and Portfolio Recovery Associates, LLC (“PRA”). Both Defendants moved to
PAGE 1 – OPINION AND ORDER

dismiss all of Plaintiff’s claims for failure to state a claim under Rule 12(b)(6) of the Federal
Rules of Civil Procedure. Dkts. 16, 20. For the reasons discussed below, Defendants’ motions
are granted and this case is dismissed without prejudice and with leave to amend.
STANDARDS
A motion to dismiss for failure to state a claim may be granted only when there is no
cognizable legal theory to support the claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs.,
Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual
allegations, the court must accept as true all well-pleaded material facts alleged in the complaint
and construe them in the light most favorable to the non-moving party. Wilson v. HewlettPackard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d
992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint
“may not simply recite the elements of a cause of action, but must contain sufficient allegations
of underlying facts to give fair notice and to enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir 2011). All reasonable inferences from
the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office
Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the
plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S.
662, 678-79 (2009).
A complaint must contain sufficient factual allegations to “plausibly suggest an
entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the
expense of discovery and continued litigation.” Baca, 652 F.3d at 1216. “A claim has facial
plausibility when the pleaded factual content allows the court to draw the reasonable inference

PAGE 2 – OPINION AND ORDER

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663 (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
A court must liberally construe the filings of a pro se plaintiff and afford the
plaintiff the benefit of the doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under
Federal Rule of Civil Procedure 8(a)(2), however, every complaint must contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” This standard “does
not require ‘detailed factual allegations,’” but does demand “more than an unadorned, the
defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id.
(quoting Twombly, 550 U.S. at 555).
PLAINTIFF’S ALLEGATIONS
Plaintiff’s complaint contains limited facts and does not specify any particular legal claim
or theory. The facts alleged by Plaintiff appear to be that sometime before 2010 he obtained a
credit card from HSBC with a $4,200 credit limit. Compl. Claim I. At some point in 2010, he
lost his credit card, reported the loss to HSBC, and requested that his card be cancelled. Id. He
was moving during this time period and some of his mail was lost. Id. At some later point, due to
work conflicts he was unable to attend an unspecified court hearing relating to his credit card
with HSBC. Id. Claim II. All of his money was then removed from his bank account on two
separate occasions. Id. Plaintiff recently was in the process of buying a house and was unable to
obtain financing because of some unidentified credit report entry relating to his HSBC credit
card. Id.
In Plaintiff’s response to the motions to dismiss, he asserts that after he reported to HSBC
that his card was lost and requested the card be cancelled, HSBC failed to cancel the card or
PAGE 3 – OPINION AND ORDER

indemnify Plaintiff for any loss on the card. Plf. Br. at 2. Plaintiff further asserts that HSBC then
“secretly sought a judgment against Plaintiff” in Oregon state court, obtained a lien, and
garnished Plaintiff’s bank accounts, taking approximately $8,000. Id.
Plaintiff also asserts in his response brief that venue and jurisdiction is appropriate in
New York or Virginia, where the Defendants have their principal place of business, and that he
intends to seek to certify a class action. Id. at 2-3.
With respect to Defendant PRA, Plaintiff asserts in his response brief that PRA is the
“handmaiden” of HSBC and it has violated the Fair Credit Reporting Act and has injured
“thousands of persons in the same way.” Id.
Plaintiff seeks, through his response brief, $420,989 in damages. Id. at 4. Plaintiff argues
that his complaint adequately states a claim for breach of fiduciary duty, breach of contract, false
advertising, and other potential class claims.1 Id. at 3.
DISCUSSION
A. Jurisdiction and Venue
1. Jurisdiction
Plaintiff’s complaint, standing alone, fails to properly allege jurisdiction. Plaintiff asserts
diversity jurisdiction, but his complaint fails to specify the amount in controversy. As relevant
here, diversity jurisdiction requires the amount in controversy exceed $75,000. 28 U.S.C.
§ 1332(a). Because Plaintiff asserts in his response brief that he is entitled to damages in the
amount of $420,989, and because the Court liberally construes pro se pleadings, the Court
construes the complaint in conjunction with the response brief as properly alleging diversity
jurisdiction.
1

Because the Court finds that Plaintiff fails to state a valid claim for relief, the Court
does not address Plaintiff’s asserted intent to seek class certification.
PAGE 4 – OPINION AND ORDER

The Court also construes Plaintiff’s complaint as asserting federal question jurisdiction
because, construing Plaintiff’s complaint and response brief liberally as the Court must, Plaintiff
alleges violations of the Fair Credit Billing Act (“FCBA”), 15 U.S.C. §§ 1643, 1666(a), and the
Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681s-2(b). As discussed further below,
Plaintiff’s complaint, however, fails to properly state a claim under either the FCBA or the
FCRA.
2. Venue
In his response to the Motion to Dismiss, Plaintiff argues that venue should be in New
York, which Plaintiff alleges is HSBC’s principal place of business, or Virginia, which Plaintiff
alleges is PRA’s principal place of business. The District of Oregon, however, is where Plaintiff
chose to file his action. Plaintiff could have dismissed this action pursuant to Federal Rule of
Civil Procedure 41(a)(1) and refiled in another jurisdiction, but he has not done so.
Plaintiff is correct that venue would be appropriate in the district in which HSBC or PRA
have their principal place of business. See 28 U.S.C. § 1391(b)(1). Venue is also appropriate,
however, in the District of Oregon because this is where a substantial part of the alleged
misconduct occurred. See 28 U.S.C. § 1391(b)(2). Neither Defendant moved to transfer venue
for reasons of convenience or otherwise. Accordingly, venue is proper before this Court and the
Court considers Defendants’ motions to dismiss on the merits.
B. Claims Against PRA
Plaintiff’s Complaint alleges no facts relating to PRA and no damages from any conduct
by PRA. In Plaintiff’s response brief, he asserts that PRA is the “handmaiden” of HSBC and has
engaged in practices with HSBC that violate the FCRA. Plaintiff’s conclusory allegation that
PRA is the “handmaiden” of HSBC in some unspecified conduct that violates the FCRA is

PAGE 5 – OPINION AND ORDER

insufficient to state claim against PRA, even a claim alleging “aiding and abetting” liability.
Thus, Plaintiff’s claims against PRA are dismissed.
C. Claims Against HSBC Under the FCBA and FCRA
1. FCBA
Under the FCBA, generally a consumer credit card holder is not liable for unauthorized
charges to his or her credit card made after the card holder notifies the credit card issuer that the
credit card was lost or stolen, and a credit card holder is liable for no more than $50 for charges
made before the credit card holder notified the credit card company that the card was lost or
stolen. 15 U.S.C. § 1643(1). Notice is deemed given to the credit card issuer when the credit card
holder takes “such such steps as may be reasonably required in the ordinary course of business to
provide the card issuer with the pertinent information . . . whether or not any particular officer,
employee, or agent of the card issuer does in fact receive such information.” 15 U.S.C.
§ 1643(2).
Here, Plaintiff alleges that he notified HSBC via telephone that his credit card was lost.
This allegation is sufficient to allege notice under 15 U.S.C. § 1643(2). Plaintiff does not allege,
however, whether any charges were made on his credit card after it was lost, how much in
unauthorized charges were made, and whether he was deemed liable by HSBC for those
unauthorized charges. Although Plaintiff asserts that HSBC later obtained a judgment and a lien
against Plaintiff and garnished Plaintiff’s bank account, he does not allege whether the
underlying debt for which HSBC obtained that lien was a result of unauthorized charges made on
Plaintiff’s credit card or authorized charges that Plaintiff made before the card was lost.
Additionally, under the FCBA, if a “credit-card holder sends a written notice disputing a
charge within sixty days of receiving a bill . . . a credit-card issuer [must] acknowledge the
dispute within thirty days, investigate the matter, and provide a written explanation of its
PAGE 6 – OPINION AND ORDER

decision within ninety days.” Lyon v. Chase Bank USA, N.A., 656 F.3d 877, (9th Cir. 2011); see
also 15 U.S.C. § 1666(a); Am. Express Co. v. Koerner, 452 U.S. 233, 234–37 (1981). Further,
the “creditor must send its explanation before making any attempt to collect the disputed
amount.” Koerner, 452 U.S. at 237; see also 15 U.S.C. § 1666(a)(3)(B). In subsequent
statements of account, the credit card issuer must notify the cardholder “that he [or she] need not
pay the amount in dispute until the card issuer has complied with § 1666.” Gray v. Am. Express
Co., 743 F.2d 10, 14 (D.C.Cir.1984) (citing 15 U.S.C. § 1666(c)(2)). A creditor or its agent “may
not directly or indirectly threaten to report to any person adversely on the obligor's credit
rating . . . and such amount may not be reported as delinquent to any third party until the creditor
has met [these] requirements.” 15 U.S.C. § 1666a(a). If a creditor fails to comply with the
provisions of §§ 1666 and 1666a, it is subject to civil liability under 15 U.S.C. § 1640 and
forfeiture of the disputed amount under § 1666(e). Lyon, 656 F.3d at 880. Here, Plaintiff does not
allege that he sent any written notice to HSBC sufficient to trigger the applicable provisions of
15 U.S.C. §§ 1666 and 1666a, and, if he did so, whether HSBC complied with its duty to
investigate the matter and provide a written explanation of its decision.
Because Plaintiff does not allege facts sufficient plausibly to suggest that HSBC violated
15 U.S.C. §§ 1643(1), 1666, or 1666a, Plaintiff fails to state a claim against HSBC under the
FCBA.
2. FCRA
Section 1681s-2(a) of the FCRA prohibits furnishing information relating to a consumer
to any consumer reporting agency (“CRA”) if the furnisher “knows or consciously avoids
knowing that the information is inaccurate” or if the furnisher has been notified by the affected
consumer that the information is inaccurate, and the information is, in fact, inaccurate. 15 U.S.C.
§ 1681s-2(a)(1)(A), (B). Only governmental entities, however, may enforce this prohibition. See
PAGE 7 – OPINION AND ORDER

15 U.S.C. § 1681s-2(d) (only governmental bodies may enforce § 1681s-2(a)); Gorman v.
Wolpoff & Abramson, LLP, 584 F.3d 1147, 1162 (9th Cir. 2009) (same); Nelson v. Chase
Manhattan Mortgage Corp., 282 F.3d 1057, 1059 (9th Cir. 2002) (same).
Section 1681s-2(b) of the FCRA establishes a furnisher’s obligations once it has been
notified by a CRA of disputed credit information. 15 U.S.C. § 1681s-2(b). A consumer has a
private right of action under this section. See 15 U.S.C. 1681s-2(d); Gorman, 584 F.3d at 1162;
Nelson, 282 F.3d at 1060. The furnisher’s obligations under Section 1681s-2(b) are triggered
when a consumer notifies a CRA of a dispute relating to credit information and the CRA notifies
the furnisher of the dispute. See 15 U.S.C. §§ 1681s-2(b); 1681i(a)(2); 1681i(a)(3); Nelson, 282
F.3d at 1060. The furnisher then has a duty to investigate the disputed information. 15 U.S.C.
§ 1681s-2(b). The CRA may terminate a reinvestigation of disputed credit information if the
CRA determines the dispute is frivolous or without merit. 15 U.S.C. § 1681i(a)(3).
Plaintiff has not alleged that he contacted a CRA and disputed information furnished by
HSBC, whether the CRA found the dispute to have merit, that the CRA notified HSBC of the
dispute, and how HSBC responded to any such notification, as is required to state a private cause
of action under the FCRA. Thus, Plaintiff fails to state claim for relief under the FCRA.
D. State Law Claims Against HSBC
Plaintiff asserts in his response brief that he has adequately pled claims against HSBC for
breach of contract, breach of fiduciary duty, and false advertising. The Court also construes
Plaintiff’s complaint as attempting to allege a claim for conversion and a claim under Oregon’s
Unlawful Debt Collection Practices Act. As discussed below, Plaintiff fails to sufficiently allege
these state law causes of action.

PAGE 8 – OPINION AND ORDER

1. Breach of Contract
To state a claim for breach of contract under Oregon law, a “plaintiff must allege the
existence of a contract, its relevant terms, plaintiff's full performance and lack of breach and
defendant's breach resulting in damage to plaintiff.” Slover v. Oregon State Bd. of Clinical Soc.
Workers, 927 P.2d 1098, 1101 (Or. App. 1996) (quotation marks omitted). Here, Plaintiff fails to
allege the existence of a contract between himself and HSBC, the terms of that contract, how
HSBC breached that contract, whether Plaintiff fully performed under the contract, and how
HSBC’s breach of contract caused Plaintiff damage. Thus, Plaintiff fails to adequately plead an
action for breach of contract.
2. Breach of Fiduciary Duty
To state a claim for breach of fiduciary duty under Oregon Law, Plaintiff must first
establish that HSBC owed him a fiduciary duty. Bennett v. Farmers Ins. Co. of Oregon, 26 P.3d
785, 798 (Or. 2001) (“Accordingly, unless plaintiff’s relationship with . . . defendant qualifies as
the type of ‘special relationship’ that gives rise to [a fiduciary duty], no breach of duty can have
occurred”). Under Oregon law, the existence of a fiduciary duty depends on whether the parties
are in a special relationship such that “the party who owes at duty of care is acting, ‘at least in
part, . . . to further the economic interests of the ‘client,’ the person owed the duty of care.’”
Conway v. Pac. Univ., 924 P.2d 818, 824 (Or. 1996) (quoting Onita Pacific Corp. v. Trustees of
Bronson, 843 P.2d 890, 897 (Or. 1992)) (alteration in original). As explained by the Oregon
Supreme Court:
Another way to characterize the types of relationships in which a
heightened duty of care exists is that the party who owes the duty
has a special responsibility toward the other party. This is so
because the party who is owed the duty effectively has authorized
the party who owes the duty to exercise independent judgment in
the former party’s behalf and in the former party’s interests.
PAGE 9 – OPINION AND ORDER

Id.
Generally, creditor-debtor relationships do not trigger fiduciary duties. See, e.g., 31
Causes of Action 2d 1 Identity Theft, § 9 (2013) (“Traditionally, however, courts have found no
fiduciary duty in the creditor-debtor relationship between a bank and its customer. . . .”); 1
Lender Liability: Law, Prac. & Prevention, § 5:3 Creditor-Debtor Relationship (2013) (“A bankborrower relationship does not, in and of itself, establish a fiduciary relationship.” (gathering
cases)).
Plaintiff alleges no facts from which the court can reasonably infer a special relationship
between Plaintiff and HSBC wherein Plaintiff authorized HSBC to “exercise independent
judgment” on Plaintiff’s behalf and in Plaintiff’s interests, Conway, 924 P.2d at 824, and wherein
HSBC was acting to further the economic interests of Plaintiff. Onita, 843 P.2d at 897. Thus,
Plaintiff fails to assert a plausible claim for breach of fiduciary duty. Iqbal, 556 U.S. at 663.
3. False Advertising
Plaintiff asserts in his response brief that he has alleged a claim for “false advertising.”
Plf’s Br. at 3. Plaintiff’s complaint does not allege facts relating to any advertising by HSBC. In
his response brief Plaintiff asserts that HSBC “advertised that once credit was gained through
HSBC that they would indemnify the borrowing against any type of losses.” Plf’s Br. at 2.
Plaintiff does not allege, or assert in his response brief, however, any specific advertising making
such a promise. Thus, Plaintiff fails to properly allege a claim for “false advertising.”
4. Conversion
“‘To state a claim for conversion, a party must establish the intentional exercise of
dominion or control over a chattel that so seriously interferes with the right of another to control
it that the actor may justly be required to pay the full value of the chattel.’” Mossberg v. Univ. of
Oregon, 247 P.3d 331, 334 (Or. App. 2011) (quoting Emmert v. No Problem Harry, Inc., 192
PAGE 10 – OPINION AND ORDER

P.3d 844, (Or. App. 2008). “For the purposes of a conversion claim, money can be chattel.” Cron
v. Zimmer, 296 P.3d 567, 577 (Or. App. 2013) (citing In re Martin, 970 P.2d 638, 642 n.1 (Or.
1998)). In determining the seriousness of the interference and the justice of requiring the actor to
pay the full value, courts consider the following factors: “(a) the extent and duration of the
actor's exercise of dominion or control; (b) the actor's intent to assert a right in fact inconsistent
with the other's right of control; (c) the actor's good faith; (d) the extent and duration of the
resulting interference with the other's right of control; (e) the harm done to the chattel; [and]
(f) the inconvenience and expense caused to the other.” Becker v. Pacific Forest Indus., Inc., 211
P.3d 284, 287 (Or. App. 2009) (citing Restatement (Second) of Torts § 222A (1965) and Mustola
v. Toddy, 456 P.2d 1004 (Or. 1969)).
Here, Plaintiff alleges that HSBC took complete control of the funds in Plaintiff’s bank
account by emptying his account. Based on Plaintiff’s allegations in his Complaint and further
assertions in his response brief, however, HSBC appears to have taken these funds pursuant to a
lawful state court judgment and lien. This means that HSBC’s garnishment of funds did not
interfere with and was not inconsistent with Plaintiff’s rights. In other words, garnishment of
funds from a bank account pursuant to a lawful judgment and lien is not wrongful, and justice
does not require the garnishor to pay the garnished sums. Accordingly, Plaintiff fails to state a
claim for conversion.
5. Oregon’s Unlawful Debt Collection Practices Act
Under Oregon’s Unlawful Debt Collection Practices Act (“UDCPA”), it is unlawful for a
debt collector to, among other enumerated actions, “Attempt to or threaten to enforce a right or
remedy with knowledge or reason to know that the right or remedy does not exist . . . .” Or. Rev.
Stat. § 646.639(k). A plaintiff can state a valid claim for relief under Oregon’s UDCPA by
alleging that the creditor violated the FCBA and did not have the right to collect an authorized
PAGE 11 – OPINION AND ORDER

charge, collect a disputed charge, or report a disputed charge as delinquent without first
providing the FCBA’s required written notice. See Lyon, 656 F.3d at 883-84. Here, as discussed
above, Plaintiff fails to state a claim for relief under the FCBA and thus cannot rely on alleged
violations of the FCBA to support a claim under the UDCPA. Plaintiff similarly fails to state a
claim for relief under Oregon’s UDCPA. Plaintiff fails to allege facts from which the court can
reasonably infer that HSBC had a reason to know that its right to collect the amount owed on
Plaintiff’s credit card from Plaintiff did not exist because the charges were unauthorized and
Plaintiff was not liable for those charges under the FCBA.
E. Plaintiff’s Request for Appointment of Pro Bono Counsel
In his response brief, Plaintiff requests the assignment of counsel. Generally, there is no
constitutional right to counsel in a civil case. United States v. 30.64 Acres of Land, 795 F.2d 796,
801 (9th Cir. 1986). The Court has discretion, however, under 28 U.S.C. § 1915(e) to request
volunteer counsel for indigent civil litigants in exceptional circumstances. Palmer v. Valdez, 560
F.3d 965, 970 (9th Cir.2009); Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103
(9th Cir.2004). Although this court may request volunteer counsel in exceptional cases, it has no
power to make a mandatory appointment. Mallard v. U.S. Dist. Court of Iowa, 490 U.S. 296,
301-08 (1989).
In determining whether exceptional circumstances exist, a court evaluates the plaintiff's
likelihood of success on the merits and the ability of the plaintiff to articulate his or her claim pro
se in light of the complexity of the legal issues involved. Palmer, 560 F.3d at 970; Agyeman, 390
F.3d at 1103. However, “[n]either of these factors is dispositive and both must be viewed
together before reaching a decision on request of counsel under [former] section 1915(d).”
Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.1986); Terrell v. Brewer, 935 F.2d 1015,
1017 (9th Cir. 1991).
PAGE 12 – OPINION AND ORDER

Here, the facts and legal issues involved are not of substantial complexity. Additionally,
the Court has concerns that there may have already been a state court action that litigated
Plaintiff’s claims and that would have a preclusive effect on Plaintiff’s claims before this Court2
and, therefore, has concern that Plaintiff appears to have a low likelihood of success on the
merits. Accordingly, at this stage of the proceeding, there are no exceptional circumstances that
support the appointment of counsel by the court under section 1915(e).
CONCLUSION
Defendants’ motions to dismiss (Dkts. 16 and 20) are GRANTED. Plaintiff’s Complaint
is dismissed without prejudice. Plaintiff has until August 30, 2013, to file an amended complaint
that cures the deficiencies identified in this Opinion and Order. If an Amended Complaint is not
filed by that date, Judgment will be entered.
IT IS SO ORDERED.
DATED this 29th day of July 2013.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

2

Plaintiff alleges in his Complaint that he was unable to make it to state court due to
work conflicts, that he requested the court date be changed, and that he heard nothing further
until his bank accounts were garnished by HSBC. Compl. Claim II. In his response brief,
Plaintiff argues that HSBC “secretly” sought a judgment against Plaintiff and failed to properly
serve Plaintiff with documents, even though it appears that Plaintiff knew about at least one court
proceeding and tried to change the court date, and that HSBC “gained an unsavory judgment in
the State Court and gained a lien against the Plaintiff’s bank accounts and proceeded to devour
those accounts.” Plf’s Br. at 2. These assertions appear to indicate that a state court action
relating to the dispute between HSBC and Plaintiff already proceeded to judgment in favor of
HSBC and against Plaintiff. Such a judgment may have a preclusive effect and bar Plaintiff’s
claims in this federal action. At this time, however, the Court does not have sufficient
information before it to determine any issues relating to preclusion.
PAGE 13 – OPINION AND ORDER